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2020 Supreme(Ker) 480
IN THE HIGH COURT OF KERALA AT ERNAKULAM
S. MANIKUMAR, SHAJI P. CHALY, JJ.
Sinoj I.V. – Appellant
Versus
State of Kerala Rep. by the Principal Secretary, Public Works Department – Respondent
W.A. No. 942 of 2020
Decided On : 03-08-2020
Advocate Appeared:
For the Appellants : Dr. K.P. Satheesan, Sri. P. Mohandas, Sri. K. Sudhinkumar, Sri. S.K. Adhithyan, Sri. Sabu Pullan, Sri. Gokul D. Sudhakaran.
For the Respondent: Sri. K.V. Manojkumar.
IMPORTANT POINTS
The acceptance of the tender was entirely at the discretion of the accepting authority and no tenderer could require the authority to show cause for rejection of the tender and further that since there was no penal consequences on the basis of the rejection of the bid tender being defective, there was no need to give any opportunity to tenderer to show cause at that stage.
Headnote:
Constitution of India- Article 12 - The power of judicial review-Not permitted to be invoked to protect private interest at the cost of public interest or to decide contractual disputes and attempts by unsuccessful tenderers with imaginary grievances, wounded pride and business rivalry, to make mountains out of molehills of some technical/procedural violation or some prejudice to self, and persuade courts to interfere by exercising power of judicial review, should be resisted, since such interference, either interim or final, may hold up public works for years, or delay relief and succour to thousands and millions and may increase the project cost manifold.
Statement of facts:
The tender evaluation committee went wrong in rejecting the technical bid of the appellant-No reasons are assigned in Ext.P10 communication for rejecting the technical bid-The vice of arbitrariness and illegality, apart from being violative of the principles of natural justice-The Chief Engineer, Public Works Department (Bridges) has a grudge against the appellant and it was accordingly that the recommendation was made by the Chief Engineer to reject the technical bid of the appellant, and the tender evaluation committee has not taken into account any other aspects to reject the technical bid of the appellant
Finding of the court:
The invitation of tender its processing and finalisation is the domain of the tender inviting authority/evaluation authority and normally a writ court exercising the power of judicial review would not interfere with the decision taken unless there are proved mala-fides or the decision taken is so irrational and beyond comprehension-The evaluation methodology adopted by the authority in accordance with manual prescribed for the purpose of Public Works Department and a decision taken based on various factual circumstances is not expected to be interfered with by re-evaluating the process and arriving at a different conclusion than the one arrived at by fact finding authority.
Result: Writ Appeal dismissed.
JUDGMENT :
SHAJI P. CHALY, J.
1. The Writ Appeal is filed by the Petitioner challenging the judgment of the learned Single Judge in W.P. (C) No. 12051 of 2020 dated 10.07.2020, dismissing the Writ Petition. The subject issue relates to invitation of tender as per Ext.P1 notice inviting tender (NIT) dated 20.01.2020 by the Chief Engineer, Public Works Department (PWD) Office of the Project Director, Kerala Road Fund Board, Thiruvananthapuram, for construction of Parakkadavu Bridge Across Manimala River in Pathanamthitta, for a total estimated cost of Rs. 7,83,41,245/-. Apparently, the bid was invited in a two bid system, i.e., the technical bid and the financial bid. The technical bid submitted by the appellant was rejected by the tender evaluating authority, which was under challenge in the writ petition. The learned Single Judge after taking into account the rival submissions made across the Bar and the pleadings put forth, has held that the appellant has not made out any case of mala-fides or irregularity or any extraneous consideration to interfere with the finding of the technical evaluation done by the committee and therefore, refused to quash Ext.P10 intimation dated 15.06.2020, informing the appellant that the tender submitted by the appellant was rejected during the technical evaluation by the duly constituted committee. The paramount contention advanced by the appellant is that, the tender submitted by the appellant was rejected on the basis of recommendation made by the Chief Engineer (Bridges), who is having personal grudge against the appellant and therefore, the rejection was unfair and vitiated with mala-fides and ill motives. It is also submitted that a single person cannot take a decision, particularly when the decision is to be taken by a committee consisting of five members. However, Annexure R1(b) produced along with the statement filed for and on behalf of the respondents would show that the committee neither made any evaluation nor applied its mind, but only followed the recommendation made by the Chief Engineer (Bridges). It is also submitted that the entire action of the respondents are unfair, arbitrary and irrational, especially due to the fact that the Chief Engineer (Bridges) is having personal grudge against the appellant, and naturally he wanted to see that the work is not awarded to the appellant. It is further submitted that, in Ext.P1 notice inviting tender, the sole criteria to be undertaken for pre-qualification to participate in the bid was that the appellant should have successfully completed at least one similar work costing more than 40% of the estimated cost of the work within the last five years and a certificate to that effect from the executing authority of the completed similar work shall invariably be submitted along with the tender documents, failing which, the tenders will not be accepted. Therefore, according to the appellant, appellant has submitted Ext.P2 certificate of experience issued by the Superintending Engineer (Roads and Bridges), PWD, Thiruvananthapuram, from where it is evident that the appellant has completed successfully the work awarded for the construction of Koorikuzhi bridge across Pallickal River connecting Thazhava Panchayath and Sooranad Panchayath in Kunnathoor constituency, having an estimated cost of Rs. 4,64,03,174/- which would satisfy the requirements to be followed in Ext.P1 notice inviting tender. That apart it is submitted that, though the work was expected to be completed on 07.07.2014, it could be completed only on 20.09.2016, however, the same was not due to any default on the part of the appellant, which would be evident from Annexure AI to AV explanations offered by Superintending Engineer, PWD (Roads and Bridges), Thiruvananthapuram, produced along with I.A. No. 1/2020 in the Writ Appeal. It is also submitted that the attempt of the respondents was to favour some other participants in the tender proceedings and the bid submitted by the appellant w
